CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 avril 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE7B11D82 { font-family:Arial; color:#111111 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt }   Communicated on 3 April 2019   FIFTH SECTION Application no. 1976/13 Vasyl Mykolayovych IVASHCHENKO against Ukraine lodged on 12 March 2007 STATEMENT OF FACTS The applicant, Mr Vasyl Mykolayovych Ivashchenko, is a Ukrainian national, who was born in 1961 and is serving his life sentence in accordance with the judgment of the Cherkasy Court of 28 January 2002. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The incident of 5 March 2012 and the relevant investigation From 5 March to 6 June 2012 the applicant was detained in the Cherkasy Pre-trial detention facility (SIZO). In his application form of 8 February 2013, the applicant complained to the Court that on 5 March 2012, when he arrived at the SIZO, he was taken out of the convoy vehicle with his hands handcuffed behind his back and was asked by a SIZO officer to kneel down. When the applicant asked why he would need to do so, he had his head covered with a hat and was severely beaten all over his body until he had lost consciousness. Once he had gained consciousness, he was brought by two officers to a medical unit of the SIZO where he was provided with medical assistance for the injuries sustained. According to the applicant, he had sustained a number of bruises and an inflammation of the pelvic area as a result of the beating, and had ribs on his left side broken which caused him severe pain. The applicant also affirmed that an X-Ray examination conducted the next day at the Cherkasy SIZO medical unit confirmed that his ribs had been fractured. On 26 February and 15 April 2013 the applicant complained about the incident of 5 March 2012 to the Office of the Prosecutor General. Having described the circumstances of his ill-treatment, the applicant also submitted that after the beating he had been urged by the acting head of the Cherkasy SIZO to state in writing that while leaving the convoy vehicle the applicant had felt unwell and therefore needed medical assistance. He also stated that his cellmate at Cherkasy SIZO witnessed all his injuries. The applicant submitted to the Court that the delay in raising this complaint before the prosecutor was caused by the applicant’s fear of physical violence due to threats from the Cherkasy SIZO officers. On 14 June 2013 the Cherkasy Prosecutor - to whom the applicant’s complaint had been transferred eventually – informed the applicant with a brief letter that, following a check, no objective evidence in support of the applicant’s ill-treatment allegations had been found. Therefore, there had been no grounds for the prosecutor’s intervention. On 16 October 2013, in reply to another complaint from the applicant, the Cherkasy Prosecutor again informed the applicant, in a letter, that there had been no grounds for the prosecutor’s intervention in the applicant’s case. The prosecutor relied in particular on an unspecified medical certificate in the applicant’s file which suggested that on 5 March 2012, upon his arrival to Cherkasy SIZO, the applicant complained about a pain in his chest and pelvic area and, following his medical examination, was provided with necessary medical assistance. The prosecutor also referred to an unspecified statement made by the applicant that he had had no complaints against Cherkasy SIZO staff. In his letter of 10 July 2013 the applicant complained to the Court under Article 34 of the Convention that he had been unable to provide the relevant medical evidence in support of his ill-treatment complaint, in particular the X-ray image referred to above and a copy of his medical file, as the authorities had repeatedly refused to provide these documents to him notwithstanding his reference to the fact that he needed them in the context of his complaint to the Court. Handwritten copies of the applicant’s requests of 26 February, 6 and 7 May 2013 and 3 February 2015 have been made available to the Court. A medical certificate provided by the authorities in reply to one of the above requests suggests that on 6 May 2015, following his medical examination by a surgeon, the applicant was diagnosed with a healed rib fracture on the left side. 2.     Conditions of detention (a)     Vinnytsia SIZO From 12 to 21 August 2011 and from 22 to 27 April 2015 the applicant had been provisionally placed in Vinnytsia SIZO. In his letter to the Court of 5 September 2011, the applicant complained that his material conditions of detention in the SIZO in 2011 had been degrading. In particular, the applicant was held in cell no. 23. The cell was located in a basement and was dark, damp and cold, letting no fresh air and daylight inside. No daily walks had been permitted to the applicant. The applicant alleged that his repeated requests to be transferred to another cell and to be allowed daily walks had been rejected by the administration. On 31 May 2013 the applicant complained about his poor conditions of detention to the Prosecutor General. On 12 July 2013 the Vinnytsia Regional Prosecutor’s Office replied to the applicant that it appeared to be impossible to confirm or disprove the applicant’s allegation as regarded the poor conditions of his cell no. 23 as the cell had been subjected to renovation since the time of the applicant’s detention there. The prosecutor further stated that the relevant records suggested that from 13 to 20 August 2011 all prisoner occupants of cell no. 23 had had one hour daily walks. On 4 May 2015 the applicant complained to the Vinnytsia Regional Prosecutor’s Office about his conditions of detention in April 2015. He submitted that he had been held in cell no. 24. Upon his arrival he had been given only an old dirty mattress, and no pillow or bed linen had been provided to him. The cell had been located in the basement and had been very cold, damp and infested with mice. The cell window had been covered with a metal sheet letting no daylight or fresh air inside. The artificial light had been very poor and no electrical socket had been available in the cell. The toilet had had no flushing mechanism and the water tap had been missing from the washbasin. On 24 July 2015, in reply to the applicant, the prosecutor submitted that cell no. 24 had been furnished with all necessary facilities in accordance with the relevant legislation. He also stated that refurbishment works were being carried out in the cell. Lastly he submitted, without providing any detail, that on 22 June 2015 the prosecutor’s office had ordered the administration of Vinnytsia SIZO to bring the sanitary and hygienic conditions of detention up-to-date in accordance with the requirements of the domestic law. (b)     Shepetivka prison From 17 August to 16 October 2012 the applicant had been undergoing medical treatment in Shepetivka prison. In his application form to the Court of 8 February 2013 the applicant submitted that for the whole period of his detention in that facility he had been denied access to bathing facilities and had had no daily walks. According to the applicant, his repeated complaints to the prison administration in this respect remained unanswered. He had provided the Court with a handwritten copy of his complaint to the prison’s head dated 20 September 2012. (c)     Kyiv SIZO From 15 December 2012 to 24 January 2013 the applicant had been detained in Kyiv SIZO. According to him he had been detained together with three other individuals in a cell which measured 3 to 5 metres. The toilet had been separated from the living area with a wall partition without doors. A video camera had been placed right in front of the toilet and had been permanently switched on. No table was available in the cell. According to the applicant, his requests to be transferred to another cell had been rejected by the Kyiv SIZO administration as there had been no other cells available. 3.     Medical assistance on account of the applicant’s hydrocele On 10 December 2008 the applicant underwent surgery on account of his inguinal hernia at Shepetivka prison. According to him, shortly after the surgery, his right testicle became three times larger and very painful. He also alleged that his request for medical assistance in this respect had been rejected by the head of the Zamkova prison no. 58, where he had been serving his prison sentence, as there had been no surgeon among the prison medical staff. In January 2013, when the applicant had been temporarily detained in Kyiv SIZO, he was examined by the SIZO surgeon. According to the applicant, following the examination he was advised to undergo more surgery as soon as possible in order to avoid having his testicle amputated as its “channels had been bound too tight” (“ перетягли канали ”) in the course of the previous surgery. On 6 May 2015 the applicant was examined by a surgeon and was diagnosed with hydrocele of the right testicle. He was recommended to undergo “elective treatment in [the] surgery department”. According to the applicant, he has still not been provided with appropriate medical assistance on account of his problem, namely surgery. COMPLAINTS The applicant complains under Article 3 of the Convention that: -     he was ill-treated in Cherkasy SIZO on 5 March 2012 and that there has been no effective investigation in this respect; -     he suffered poor conditions of detention at Vinnytsia and Kyiv SIZOs as well as at Shepetivka prison; -     he was not provided with adequate and timely medical assistance in respect of his genitalia-related problem. Under Article 34 of the Convention, the applicant complains about the penitentiary authorities’ refusal to provide him with copies of his medical documents relevant for his complaints under Article 3 concerning the ill ‑ treatment and the lack of medical assistance. QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to torture, inhuman or degrading treatment or punishment on 5 March 2012, in breach of Article   3 of the Convention?   2.     Having regard to the procedural protection from torture, inhuman or degrading treatment or punishment (see paragraph 131 of Labita v.   Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?   3.     Did the material conditions of the applicant’s detention in Vinnytsia SIZO from 12 to 21 August 2011 and from 22 to 27 April 2015, Shepetivka prison from 17 August to 16 October 2012, and Kyiv SIZO from 15   December 2012 to 24 January 2013, in particular the personal space available in the cell, the time allowed outside the cell, and the sanitary conditions, amount to inhuman or degrading treatment?   4.     Was the applicant provided with timely and adequate medical treatment for his hydrocele, in compliance with Article 3 of the Convention?   5.     Has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of application, ensured by Article   34 of the Convention? In particular, did the applicant have a possibility to obtain copies of the documents from his medical file and to send them to the Court in order to pursue his present application?   The Government are requested to submit copies of all documents relevant to the applicant’s complaints, including but not limited to: -     the applicant’s complaints regarding his alleged ill-treatment on 5   March 2012 and his requests for medical assistance on account of his genitalia-related problem and the relevant decisions of the authorities; -     all relevant medical reports, including the X-ray image allegedly made the day after the applicant’s ill-treatment and the relevant medical opinion on it, as well as information on the results of the applicant’s medical examination by a surgeon at Kyiv SIZO in January 2013.